Al Tech Specialty Steel Corp. v. United States , 27 Ct. Int'l Trade 1791 ( 2003 )

Slip Op. 03-164
UNITED STATES COURT OF INTERNATIONAL TRADE
________________________________________________
:
AL TECH SPECIALTY STEEL CORP., CARPENTER
TECHNOLOGY CORP., REPUBLIC ENGINEERED :
STEELS, TALLEY METALS TECHNOLOGY, INC.
and UNITED STEEL WORKERS OF AMERICA, :
AFL-CIO/CLC,
:
Plaintiffs,
:
v.
:
UNITED STATES OF AMERICA and Court No. 98-10-03062
THE UNITED STATES INTERNATIONAL : [PUBLIC VERSION]
TRADE COMMISSION,
:
Defendants,
:
and
:
KRUPP EDELSTAHLPROFILE GMBH and
KRUPP HOESCH STEEL PRODUCTS, INC., :
Defendant-Intervenors. :
________________________________________________
[Plaintiffs’ Motion for Judgment Upon the Agency Record is denied.]
December 16, 2003
Collier Shannon Scott, PLLC (Laurence J. Lasoff, Robin H. Gilbert and R. Alan Luberda),
for Plaintiffs.
Lyn M. Schlitt, General Counsel;(Charles A. St. Charles), Office of the General Counsel,
United States International Trade Commission, for Defendant.
Hogan & Hartson LLP (Lewis E. Leibowitz, Craig A. Lewis, and Stephen F. Propst), for
Defendant-Intervenors.
Court No. 98-10-03062 Page 2
OPINION
RIDGWAY, Judge:
Plaintiffs AL Tech Specialty Steel Corp., Carpenter Technology Corp., Republic Engineered
Steels, Talley Metals Technology, Inc., and United Steel Workers of America, AFL-CIO/CLC
(collectively, “Plaintiffs” or “Domestic Industry”) challenge the determination by the United States
International Trade Commission (the “Commission”) that imports of stainless steel wire rod
(“SSWR”) from Germany were “negligible” within the meaning of 19 U.S.C. §§ 1673d(b)(1) and
1677(24)(A)(i).1 Stainless Steel Wire Rod From Germany, Italy, Japan, Korea, Spain, Sweden, and
Taiwan, 63 Fed. Reg. 49,610 (Int’l Trade Comm’n Sept. 16, 1998) (“ITC Final Determination”).
By operation of law, the Commission’s finding of negligibility terminated its antidumping
investigation of imports from Germany. 19 U.S.C. 1673d(b)(1).
For the reasons set forth below, Plaintiffs’ motion for judgment on the agency record is
denied.
*
This Public Version of the Court’s opinion has been redacted to protect business proprietary
information. Redactions are reflected by empty brackets, except that, for the sake of readability –
wherever possible – a description or characterization of the redacted information has been substituted
for the proprietary information. Those descriptions or characterizations appear in italics within the
brackets.
1
Stainless steel wire rod is identified as “stainless steel products that are hot-rolled or hot-
rolled annealed and/or descaled rounds, squares, octagons, hexagons, or other shapes, in coils, that
may also be coated with a lubricant containing copper, lime or oxalate. . . . . Stainless steel wire rod
is provided for in subheading 7221.00.00 of the Harmonized Tariff Schedule (HTS) with a 1998
column 1-general tariff rate of 2.8 percent ad valorem, applicable to products of each of the subject
countries.” ITC Final Determination, 63 Fed. Reg. at 49,610 n.1.
Court No. 98-10-03062 Page 3
I. Background
Plaintiffs filed an antidumping duty petition with the United States Department of Commerce
(“Commerce”) and the Commission against imports of SSWR from Germany and other countries
on July 30, 1997.2 Complaint ¶ 6. The petition alleged that these SSWR imports “are being, or are
likely to be, sold in the United States at less than fair value within the meaning of [19 U.S.C. §
1677], and that such imports are materially injuring an industry in the United States.” Stainless Steel
Wire Rod from Germany, Italy, Japan, Korea, Spain, Sweden, and Taiwan, 62 Fed. Reg. 45,224(Dep’t Commerce Aug. 26, 1997). Both Commerce and the Commission instituted preliminary
antidumping investigations. Stainless Steel Wire Rod from Germany, Italy, Japan, Korea, Spain,
Sweden, and Taiwan, 62 Fed. Reg. 42,263 (Int’l Trade Comm’n Aug. 6, 1997); Stainless Steel Wire
Rod from Germany, Italy, Japan, Korea, Spain, Sweden, and Taiwan, 62 Fed. Reg. 45,224 (Dep’t
Commerce Aug. 26, 1997).
During the preliminary injury investigation, Defendant-Intervenors Krupp Edelstahlprofile
GmbH (“KEP”) and Krupp Hoesch Steel Products, Inc. (collectively, “Krupp”) argued that imports
of SSWR from Germany were “negligible” within the meaning of 19 U.S.C. § 1673b(a)(1) and §
1677(24)(A)(i). Public Record (“P.R.”) 102, Confidential Record (“C.R.”) 27, Post-Conference
Brief on Behalf of Krupp Edelstahlprofile GmbH and Krupp Hoesch Steel Products, Inc. at 25-33.
Krupp noted a discrepancy between the “official” import data and its own records with respect to
German imports of SSWR when it noted a concentration of German imports under the tariff
2
The Commission reviewed investigations of imports of SSWR from Germany, Italy, Japan,
Korea, Spain, Sweden, and Taiwan. Only the Commission’s negligibility determination with respect
to imports of SSWR from Germany is at issue here. Complaint ¶ 1. See ITC Final Determination,
63 Fed. Reg. 49,610.
Court No. 98-10-03062 Page 4
subheadings 7221.00.0045 HTSUS (stainless steel wire rod with cross-sections exceeding 19mm)
and 7221.00.0075 (coiled stainless steel wire rod and bars of non-circular cross-sectional profiles)
when it actually only shipped [a relatively low number of] tons. C.R. 27 at 32, C.R. 76 at 2-4.
Specifically, it argued that statistics showing 1,024 tons – or 44% – of German imports were
classified under subheadings 7221.00.0045 and 7221.00.0075 could not be correct since Krupp [
] and the Commission estimated Krupp accounted for [a very high
percentage] of all SSWR imports from Germany as of September 1997. P.R. 102/C.R. 27 at 32;
C.R. 76 at 3-4, C.R. 43, Stainless Steel Wire Rod From Germany, Italy, Japan, Korea, Spain,
Sweden, and Taiwan, Staff Report to the Commission on Inv. No. 701-TA-373 and Nos. 731-TA-
769 through 775 (Prelim.) (“Preliminary Staff Report”) at VII-3 n.3 (Sept. 8, 1997).
The Commission Staff noted a “discrepancy between official statistics on imports from
Germany and the numbers reported by [one company] in the foreign producer questionnaire and
[another company] in the importer’s questionnaire.” C.R. 173. Specifically, official import statistics
showed [a major inconsistency compared to] reported imports and exports in 1996. C.R. 173.
Official statistics showed 1,655 short tons of SSWR imported from Germany, but questionnaire
responses reported only [a much smaller quantity] exported to the United States. C.R. 43,
Preliminary Staff Report, IV-4 (Table IV-2), VII-2 to -3 (Table VII-1). When asked about the
discrepancy, counsel for Krupp guessed that the problem could be misclassification of goods or
mislabeled country of origin. C.R. 173. Counsel for Krupp requested that the Commission, in the
event of a final investigation, “do an extensive analysis” to trace “exactly where the shipments were
originating.” C.R. 173.
Court No. 98-10-03062 Page 5
The Commission published notice of its preliminary affirmative determination that there was
“a reasonable indication that an industry in the United States [was being] materially injured or
threatened with material injury by reason of imports from Germany . . . of stainless steel wire rod
that [were allegedly being] sold in the United States at less than fair value (LTFV).” Stainless Steel
Wire Rod from Germany, Italy, Japan, Korea, Spain, Sweden, and Taiwan, 62 Fed. Reg. 49,994 (Int’l
Trade Comm’n Sept. 24, 1997) (“ITC Preliminary Determination”); see P.R 144, Stainless Steel
Wire Rod from Germany, Italy, Japan, Korea, Spain, Sweden, and Taiwan, Inv. Nos. 701-TA-373
and Nos. 731-TA-769-775 (Prelim.), USITC Pub. 3060 (“Preliminary Commission Views”) at IV-1
at 3 n.1 (Sept. 1997). In its preliminary determination, the Commission relied on the unadjusted,
official U.S. import statistics for imports for consumption to find that imports of SSWR from
Germany accounted for more than three percent of total imports for consumption during twelve
months prior to the petition for which information was available, that is July 1996 through June
1997. P.R. 144, Preliminary Commission Views at 14. The Commission also noted Krupp’s
argument to the contrary. P.R. 144 at 14.
Commerce also published notice of a preliminary affirmative determination that imports of
SSWR from Germany were being sold for less than fair value.3 Stainless Steel Wire Rod From
3
In its investigation of stainless steel wire rod from Germany, Commerce sent a questionnaire
on September 19, 1997 to two potential producers and/or exporters of the subject imports to the
United States: Krupp and BGH Edelstahl Freital GmbH (“BGH Edelstahl”). DOC Preliminary
Determination, 63 Fed. Reg. at 10,847. Krupp only responded to one section of the questionnaire,
and BGH Edelstahl did not respond at all to the questionnaire. Id. Based on the companies’ failure
to fully respond to Commerce’s questionnaires, Commerce determined that the use of adverse facts
available was “warranted with respect to both companies.” DOC Preliminary Determination, 63 Fed.
Reg. at 10,848. Commerce then based the companies’ dumping margins on information from the
petition (as adjusted by Commerce at the time of initiation). Id.
Court No. 98-10-03062 Page 6
Germany, 63 Fed. Reg. 10,847 (Dep’t Commerce Mar. 5, 1998) (“DOC Preliminary
Determination”). Commerce later issued a final determination that imports of SSWR from Germany
were being sold at less than fair value, stating it would impose final antidumping duties on the
imports if the Commission found material injury, or threat of material injury.4 Stainless Steel Wire
Rod From Germany, 63 Fed. Reg. 40,433 (Dep’t Commerce July 29, 1998) (“DOC Final
Determination”).
On February 26, 1998, Krupp again raised the issue of the apparent discrepancies in the
official import statistics with the Commission. C.R. 270. Krupp noted the possibility that [ ]
non-German material may have been included in the statistics. C.R. 270. Two weeks later, counsel
for Krupp spoke with the Commission noting its concern that “there is a misclassification in the
official statistics” because “[of a significant discrepancy in official statistics on imports of stainless
steel wire rod from Germany compared to] the exports from Germany to the United States reported
by the [ ] major producers/exporters in Germany.” C.R. 270. The Commission then began
the final phase of its injury investigation on March 23, 1998. See Stainless Steel Wire Rod From
Germany, Italy, Japan, Korea, Spain, Sweden and Taiwan, 63 Fed. Reg. 13,872 (Int’l Trade Comm’n
Mar. 23, 1998) (scheduling of final phase of countervailing duty and antidumping investigations).5
4
As it found in its preliminary determination, Commerce found that imports of SSWR from
Germany had margins ranging from 19.45 to 21.28 percent ad valorem. DOC Final Determination,
63 Fed. Reg. at 40,434. See also Complaint ¶ 9.
5
[Another] importer also raised questions as to the accuracy of German import statistics. See
C.R. 398 [
].
Court No. 98-10-03062 Page 7
Ultimately, the Commission Staff reported two major discrepancies between official import
statistics and questionnaire responses that resulted in the Commission Staff adjusting the official
statistics. P.R. 481/C.R.81 Stainless Steel Wire Rod from Germany, Italy, Japan, Korea, Spain,
Sweden and Taiwan, Report to the Commission on Investigations Nos. 70-9A-373 (Final) and 731-
9A-769 through 775 (Final) (“Final Staff Report”), F-18 to -19, (Table F-8) nn.1-4. The first
significant discrepancy was a difference in import volumes of [Company A]; [Company A] imports
were misclassified, so the Commission Staff excluded the misclassified imports. See id. [Company
A] reported [ ] imports of SSWR during July 1996 through June 1997 on its certified
questionnaire response. C.R. 102. But official import statistics showed [Company A] as having
imported a significant tonnage of SSWR during that period. C.R. 81, Final Staff Report at F-18 to
-19, Table F-8 & n.2.
Commission Staff contacted the U.S. Customs Service6 to obtain import data, sorted by
importer, C.R. 274, and contact information for manufacturers for which Commission Staff could
only identify a manufacturer code. C.R. 275. Customs identified [a particular German
manufacturer]. C.R. 276. Commission Staff reviewed the import data sent by Customs and noted
that [a substantial proportion of] imports classified under one subheading under investigation were
imported by [Company A]. C.R. 545. Further, Commission Staff noted that imports from [the
German manufacturer identified by Customs] tracked “almost exactly with publically official
statistics.” C.R. 561.
6
The United States Customs Service was renamed effective March 1, 2003, and is now
organized as the United States Bureau of Customs and Border Protection. See Homeland Security
Act of 2002, Pub. L. 107-296, § 1502, 116 Stat. 2135, 2308-09 (2002); Reorganization Plan for the
Department of Homeland Security, H.R. Doc. No. 108-32 (2003).
Court No. 98-10-03062 Page 8
Commission Staff called [a representative of Company A] to ask for an explanation of the
large discrepancy between [Company A’s] report of [ ] imports from Germany and the import
volume recorded in official import statistics.7 C.R. 426. The response was “that [Company A’s]
‘major product by far’ in the past several years has been [a particular type of steel product];
[Company A] imports [that type of product], not [steel of the type subject to the investigation].” C.R.
426. Commission Staff probed, asking if [the steel product imported by Company A] may fall under
the scope definition in these investigations, and [the representative of Company A] said no.
Commission Staff called a second time to ask about the physical characteristics of the good imported
by [Company A], but [Company A’s] description did not conform with that of the merchandise
subject to the investigation. C.R. 426. [Company A] did admit to importing SSWR in previous
years; and, when told that at least some of its nonconforming imports were classified as SSWR, [the
representative of Company A] stated “[he would make inquiries to determine whether there had been
a misclassification].” C.R. 426.
The Commission Staff followed up with [Company A], asking for written confirmation of
the statements made in telephone conversations that the imports classified in official statistics as
SSWR attributable to [Company A] were actually misclassified and not subject to the investigation.
C.R. 545. [Company A] complied with the request by sending written confirmation that “[all its
imports from Germany were of a steel product other than the subject merchandise].” C.R. 550.
Commission Staff then contacted [the German manufacturer that Customs had identified] by fax to
7
Commission Staff expressed concern about whether official import data was accurate in an
email sent to [
]: “Since official stats have been called into question, at least with respect to Germany,
I would like to feel very comfortable that the foreign data and US import data are correct.” C.R. 400.
Court No. 98-10-03062 Page 9
inquire into [the manufacturer’s] production facilities and production of SSWR. C.R. 558.
Bollinghaus replied by fax, explaining [the limitations of its facilities] and certifying its [ ]
answer to the questionnaire inquiry, “Has your firm produced stainless steel wire rod since January
1, 1995?” C.R. 568.
The second discrepancy was a difference in import volumes due to allegedly mislabeled
countries of origin by importer, [Company B]. The resulting adjustment was the exclusion of [a
substantial percentage] of the imports originally labeled as German. See C.R. 81, Final Staff Report,
F-18 to -19 (Table F-8) n.4. The Commission Staff was first alerted to the possibility that the official
statistics may be unreliable regarding [Company B’s] imports when it contacted and received
confirmation from [Company B] that [a particular German supplier], from which [Company B]
imported all its SSWR, was the company listed as the manufacturer of the SSWR shipped to
[Company B] but was not a producer of SSWR. C.R. 274; C.R. 81 Final Staff Report F-18 (Table
F-8) n.1; C.R. 280, Letter from [ ]. [The
president of Company B] explained to the Commission Staff that [Company B’s supplier] purchased
SSWR from European sources, tested the SSWR, then shipped it to [Company B]. C.R. 274.
Accordingly, Commission Staff “asked [the president of Company B] to identify his imports by
individual producers” on the Importer’s Questionnaire he was to file with the Commission. C.R.
274. Official import statistics showed that all [Company B’s] SSWR imported from [its supplier]
was designated as originating in Germany. Final Staff Report, C.R. 81, F-19 (Table F-8) n.4. [The
president of Company B] memorialized the conversation by way of letter to Commission Staff
Court No. 98-10-03062 Page 10
reiterating that [Company B’s supplier] did not produce SSWR, purchasing SSWR from European
sources instead, and shipping the purchased SSWR to [Company B]. C.R. 280.
[Company B] indicated [that a certain percentage of its imports were of German origin, with
the remainder from a second country] – without any tonnage breakout – by handwritten marking
next to country selections and in response to the share-of-imports question on its Importer’s
Questionnaire. C.R. 396. After receiving the questionnaire, Commission Staff called [Company B’s
president] and wrote a letter requesting “a better breakout of [the two countries of origin],” and
suggesting, “(I believe you said that maybe the grades or the ‘heat’ classification might help you?)”
C.R. 492V. [Company B’s president] responded to the further inquiry on behalf of [Company B] by
sending a letter with a print out of [Company B’s] vessel list containing SSWR import data from July
1996 through June 1997. C.R. 496.
The vessel list included handwritten notations in the country-of-origin column stating [the
origin of material – either Germany or the second country]. C.R. 496. The word “Germany”
appears [a number of] times; and each time lines extend from the word to material-weight figures
in the weight column, indicating which material volumes are associated with the country label. C.R.
496. One group of material volumes in the weight column corresponding to [the second country]
is similarly marked. C.R. 496. But most groups of volumes from the weight column have an arrow
pointing from material volume subtotals appearing in the weight column to [the name of the second
country] in the country-of-origin column. C.R. 496. Further, each material volume has a
corresponding “heat code” in a column labeled “Heat #,” to the right of the country-of-origin
Court No. 98-10-03062 Page 11
column. C.R. 496. Every material volume marked [with the name of the second country] has a
corresponding [heat number of a particular type], and every material volume marked “Germany”
has a corresponding [heat number of a different type]. C.R. 496.
Commission Staff noted that, while the certified questionnaire “estimated a [particular] split
in imports between Germany and [the second country] . . . in subsequent information [that [the
president of Company B]] submitted it appears that [a substantial percentage] of his imports were
from [the second country].” C.R. 597. [The president of Company B] confirmed the approximate
[ratio of material of German origin to that of second country origin]. C.R. 597.
Commission Staff then prepared a worksheet comparing the import and country-of-origin
information provided by [Company B] with official import statistics. C.R. 603. Commission staff
noted, “there are a number of instances where the date appearing in the Customs Net Import File
(CNIF) differs from the date appearing in the vessel list supplied by [Company B]; however, even
with this inconvenience, the correlation between the data is obvious.” C.R. 603. In the worksheet,
Commission Staff labeled [a number of] groups of import volumes as “unknown” country of origin.
C.R. 603. The marked-up copies of the vessel lists—used by Commission Staff to prepare the
comparison chart—show that the “unknown” volumes of material were volumes at the beginning
of groups of volumes in the weight column before a subtotal of material volume by weight, but were
volumes not included in the subtotal. C.R. 603. Further, in each case of an “unknown” volume, the
“unknown” group was sandwiched between volumes [identified as being of second country] origin,
and had no intervening subtotal which would create an obvious break in the numbers in the column
of import volumes by weight.” C.R. 603. Moreover, each “unknown” volume has a corresponding
Court No. 98-10-03062 Page 12
[heat code of the particular type associated with origin in the second country]. C.R. 603. The Staff
Report explains that “[
].” C.R. 81 Final Staff Report, F-19, (Table F-8)
n.4.
Approximately [ ] percent of [Company B’s] imports on the vessel list were not marked
with any country of origin. C.R. 81, Final Staff Report, F-19, (Table F-8) n.4. The percentage break
down of [Company B’s] imports with country-of-origin markings—according to [the company
president’s] handwritten notations—was [ ] percent [second country origin] and [ ] percent
German. Id. The Commission Staff extrapolated the same [country of origin ratio derived] from
the [material of known origin] to the [ ] percent of imports the Commission Staff labeled as having
“unknown” origin. C.R. 81, Final Staff Report F-19 (Table F-8) n.2; C.R. 603.
As a result of its investigation, the Commission Staff concluded that official imports from
Germany were overstated, because: (1) “they include [stainless steel wire rod of second country
origin] that was shipped to [Company B] by [its sole supplier, which does not manufacture SSWR]”;
and (2) “imports of [a steel product other than stainless steel wire rod] by [Company A] into [a
specific U.S. port] from Germany, [and two other countries] are misclassified as stainless steel wire
rod.” P.R. 481/C.R. 81, Final Staff Report at IV-3.
The Commission Staff then adjusted the “official” import statistics for the data covering the
twelve-month period prior to the petition (the data used for the negligibility analysis) to account for
these discrepancies by [the two companies]. See P.R. 481/C.R. 81, Final Staff Report at IV-4 (Table
IV-1) (U.S. Imports, questionnaire data, period of investigation, by source), F-8 to 9 (Table F-3)
Court No. 98-10-03062 Page 13
(U.S. Official Imports for Consumption as adjusted by Commission staff, period of investigation,
by source), F-10 to 11 (Table F-4) (U.S. Imports, questionnaire data, period of investigation, by
firm); F-13 (Table F-5) (U.S. Imports, official data, imports for consumption adjusted for
misclassification).
The Final Staff Report included negligibility calculations based on imports-for-consumption
and general-imports data, both unadjusted and adjusted for errors. See generally P.R. 481/C.R. 81,
Final Staff Report at F-13 (Table F-5), F-18 to -19 (Table F-8). Specifically, using official imports-
for-consumption statistics, adjusted for inaccuracies imports from Germany accounted for 2.76
percent of all SSWR imports during the 12-month period preceding the filing of the petition (July
1996 through June 1997). P.R. 481/C.R. 81, Final Staff Report at F-13 (Table F-5).
Using general-imports statistics, the Commission Staff determined that “adjusted German
imports . . . accounted for only 2.94 percent of total adjusted imports.” P.R. 481/C.R. 81, Final Staff
Report at F-18 to -19 (Table F-8). “[U]nadjusted, the official U.S. [general-imports] statistics show
a 4.74 percent share for Germany.” Pls.’ Brief at 8-9 (emphasis added) (citing P.R. 481/C.R. 81,
Final Staff Report, F-18 to -19 (Table F-8 nn.1-4) ).
Based on this data, the Commission determined that for the purposes of its present-material-
injury analysis, imports of SSWR from Germany were negligible during the twelve months
preceding the filing of the petition. Id.; see ITC Final Determination, 63 Fed. Reg. at 49, 610; see
also Complaint ¶ 10. Specifically, four of the five participating Commissioners relied on the
negligibility calculation based on the imports-for-consumption data series and determined that
imports from Germany accounted for 2.76 percent of total adjusted imports. See P.R. 481/C.R. 81
Court No. 98-10-03062 Page 14
at 12 & n. 43, Final Staff Report, Table F-5. All five of the participating Commissioners found that
the imports would be negligible if the ratio for German imports were calculated using the adjusted
“general” imports data series. P.R. 506, Final Commission Views at 12 n.43. None of the
participating Commissioners relied on the unadjusted official data for either imports for consumption
or general imports. Def.-Intervenors’ Brief at 28. Further, although the Commission majority found
“a potential that subject imports from Germany will imminently account for more than three percent
of total SSWR imports in the relevant 12-month period,” it concluded that “an industry in the United
States is not threatened with material injury by reason of imports of SSWR from Germany that have
been found by Commerce to be sold at LTFV.”8 P.R. 506, Final Commission Views at 4-5, 23; see
also ITC Final Determination, 63 Fed. Reg. at 49,610 n.5.
This action ensued, challenging the Commission’s final determination that there was no
present material injury by reason of subject imports from Germany because such imports were
“negligible” within the meaning of 19 U.S.C. § 1673d(b)(1) and § 1677(24)(A)(1). See, e.g.,
Complaint ¶¶ 5, 12. Plaintiffs argue that by basing the determination on imports-for-consumption
data instead of general-imports data, the Commission relied on the wrong set of official import
statistics. See Pls.’ Brief at 1, 9-10, 13, 23-25; Pls.’ Reply Brief at 1-14. Plaintiffs also contend that
8
In contrast, because Commissioner Crawford found that imports of SSWR from Germany
would not imminently exceed the three percent negligibility threshold, she did not go on to consider
those imports for purposes of determining threat of material injury. See C.R. 644, Stainless Steel
Wire Rod from Germany, Italy, Japan, Korea, Spain, Sweden and Taiwan, Inv. No. 701-TA-373 &
731-TA-769-775 (Final) (Sept. 16, 1998) (“Confidential Commission Views”) at 48-51 (dissenting
views of Commissioner Crawford). Commissioner Crawford’s finding is not at issue in this action.
Court No. 98-10-03062 Page 15
the Commission should not have relied on adjustments made by the Commission staff to the official
import statistics based on data provided by importers. See Pls.’ Brief at 1, 3, 9, 14-26; Pls.’ Reply
Brief at 15-31.
Jurisdiction lies under 19 U.S.C. § 1516a(a)(2) and 28 U.S.C. § 2636(c).
II. Standard of Review
In reviewing a challenge to the Commission’s final determination in an antidumping case,
the Commission’s determination must be upheld unless it is “unsupported by substantial evidence
on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
The party challenging the Commission’s finding “bears the burden of proving the evidence
is inadequate.” Micron Tech., Inc. v. United States, 117 F.3d 1386, 1397 (Fed. Cir. 1997).
“Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v.
NLRB, 340 U.S. 474 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));
see also Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966) (defining “substantial
evidence” as “something less than the weight of the evidence”). “‘It is not within the Court's
domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject
a finding on grounds of a differing interpretation of the record.’” Timken Co. v. United States, 913
F. Supp. 580, 583 (CIT 1996) (quoting Timken Co. v. United States, 12 CIT 955, 962, 699 F. Supp.
300, 306 (1988), aff'd, 894 F.2d 385 (Fed. Cir. 1990)). Moreover, “the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from
Court No. 98-10-03062 Page 16
being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620
(1966) (citations omitted).
III. Analysis
In antidumping investigations, the Commission determines whether
(A) an industry in the United States –
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially retarded,
by reason of imports, or sales (or the likelihood of sales) for importation, of the
merchandise with respect to which the administering authority has made an
affirmative determination under subsection (a)(1) of this section. If the Commission
determines that imports of the subject merchandise are negligible, the investigation
shall be terminated.
19 U.S.C. § 1673d(b)(1) (1994) (emphasis added). The Statement of Administration Action
(“SAA”) is to the same effect. SAA at 855.
The Commission’s negligibility analysis is specifically guided by Section 771(24) of the
Tariff Act of 1930, as amended by the URAA, which provides that imports are considered
“negligible” if such imports “account for less than 3 percent of the volume of all such merchandise
imported into the United States in the most recent 12-month period for which data are available that
precedes” the filing of the petition. 19 U.S.C. §1677(24)(A)(i) (1994). In this case, the Commission
determined that imports of SSWR from Germany were negligible during the relevant twelve month
period preceding the filing of the petition—July 1996 through June 1997. ITC Final Determination,
63 Fed. Reg. 49,610; see also P.R. 506, Final Commission Views at 20-22.
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The plaintiff Domestic Industry here argues (a) that the Commission erred in relying on
statistics concerning “imports for consumption” (rather than “general imports”) in reaching its
negligibility determination;9 and (b) that certain adjustments made to the official statistics are not
supported by substantial evidence. Although the Commission based its determination on “imports
for consumption,” it also analyzed the “general imports” data – the data that Plaintiffs urged. Like
its analysis based on statistics concerning imports for consumption, the Commission’s analysis of
statistics on general imports concluded that German imports were negligible. Accordingly, because
– as detailed below – the adjustments are supported by substantial evidence in the record and are
otherwise in accordance with law, there is no need to reach Plaintiffs’ other issue.
A. [Company A] Adjustments
As discussed in section I above, the Commission adjusted the official statistics to reflect
information supplied by [Company A] in the course of the investigation indicating that imports from
Germany, [and two other countries] – which had been declared to Customs to be SSWR – were, in
fact, instead “[another steel product].” The Domestic Industry contends that – for two reasons – the
Commission’s adjustments to [Company A’s] data are not supported by substantial evidence on the
record, and are otherwise contrary to law. See generally Plaintiffs’ Brief at 3, 9, 21-23; Plaintiffs’
Reply Brief at 27-30.
9
Imports-for-consumption data “measure the total merchandise that has physically cleared
through Customs, either entering consumption channels immediately or as withdrawals from bonded
warehouses under Customs custody or from foreign trade zones.” Def.’s Response Brief at 3 (citing
Guide to Foreign Trade Statistics (Dep’t Commerce Dec. 1992)).
Court No. 98-10-03062 Page 18
First, the Domestic Industry seeks to depict [Company A] as untrustworthy, and to cast doubt
on the “accuracy, reliability, and probative value”of the information it provided – emphasizing that,
at the time it made its disclosure, the company knew that a negligibility determination would result
in no liability for antidumping duties; suggesting that the company may have intentionally
misclassified its merchandise to obtain the lower customs duty rate applicable to SSWR; and
questioning whether the company ever reported the misclassification to Customs. Plaintiffs’ Brief
at 21-22; Plaintiffs’ Reply Brief at 27-30. The Domestic Industry asserts that, at a minimum,
[Company A] is guilty of misrepresentation to at least one of the two federal agencies and that, under
the circumstances, the Commission erred in “simply tak[ing] the importer’s word for what it said had
occurred regarding its imports.” Plaintiffs’ Brief at 22.
As an initial matter, it is worth noting – in the context of the Domestic Industry’s challenges
to the reliability of information provided by [Company A] – that the credibility of sources is largely
a matter within the province of the Commission, as the trier of fact. See generally Defendant-
Intervenors’ Brief at 58-59.
But, contrary to the Domestic Industry’s claims, the Commission did not blindly accept
[Company A’s] statements at face value. As section I above explains, discrepancies in the official
import data first came to the Commission’s attention in the preliminary phase of the investigation,
when counsel to the German producers noted in post-conference briefing that the official data
showed an inexplicable concentration of German imports in one particular HTSUS subheading,
covering material with circular cross-sections exceeding 19 mm. Those data could not be reconciled
with the fact that KEP – which accounted for [a very high percentage] of total German imports – had
Court No. 98-10-03062 Page 19
shipped a [ ] quantity of the material in the relevant twelve-month period. C.R. 43,
Preliminary Staff Report at VII-3; C.R. 27 at 32.
After analyzing the foreign producer and importers’ questionnaire data, the Commission staff
expressed similar concerns about the vast “discrepancy between official statistics on imports from
Germany and the numbers reported by [one company] in the foreign producer questionnaire and
[another company], in the importer’s questionnaire.” C.R. 173. The staff investigator further noted
that “the numbers in the official statistics are [significantly higher in calendar year 1996 than] the
reported import and export numbers.” Id. Indeed, the Preliminary Staff Report showed that –
according to the official statistics – 1996 imports of SSWR from Germany totaled 1,655 short tons,
while foreign producer questionnaire data reflected total shipments to the United States of [a
significantly smaller] quantity. See C.R. 43, Preliminary Staff Report, at IV-4 (Table IV-2) and VII-
3 (Table VII-1). When asked about the discrepancy, counsel to the primary German producer
suggested that the problem might lie with the large diameter material, and requested that – in the
event of a final investigation – the Commission “do an extensive analysis” to trace “exactly where
the shipments were originating.” Id.The concerns about these discrepancies in the official import data continued unabated into
the final phase of the Commission’s investigation. In late February 1998, counsel for KEP spoke
with the Commission investigator, seeking a meeting to discuss “issues specific to the exports from
Germany, for example some shipments classified as German are not German (they may be
transhipments).” C.R. 270. Counsel spoke with the Commission staff again in mid-March 1998,
emphasizing that “[there was a significant discrepancy in official statistics on imports of stainless
Court No. 98-10-03062 Page 20
steel wire rod from Germany compared to] the exports from Germany to the United States reported
by the [ ] major producers/exporters in Germany.” Counsel indicated his belief that
misclassification was involved, and asked that the Commission staff “look into this matter.” Id.The source of counsel’s concern was manifest in the official import statistics, which indicated
that a substantial volume of the imported, allegedly “German” material consisted of stainless steel
coiled bars with diameters of 19 mm or more, and coiled stainless steel wire rod and bars of non-
circular cross-sectional profiles. However, as Krupp noted in post-hearing briefing, the official data
could not be correct, and could not accurately reflect imports of German material, because the
evidence compiled in the final investigations indicated that KEP – which was by far the largest
German producer and exporter of subject merchandise – [ ]
non-circular product (subheading 7221.00.0075, HTSUS) or coiled bar (subheading 7221.00.0045,
HTSUS) to the United States during the relevant period. C.R. 76 at 3. Similarly, the only other
German producer of SSWR – [ ] – advised in its prehearing brief that it, too, had sold only
[ ] in the United States. C.R. 53 at 3. Thus, the volumes of non-circular product
reported in the official statistics could not be attributed to [that producer].
Through its final investigation, the Commission staff sought to resolve the identified
discrepancies. The information developed, confirmed, and corroborated by the Commission through
correspondence with importers and foreign suppliers, as well as proprietary Customs sources,
eventually enabled the Commission to reconcile the data, and resulted in the adjustments to the
[Company A] data. The evidence supporting those adjustments includes: (1) the certified importers’
questionnaire response which [Company A] submitted in the preliminary investigation, listing
Court No. 98-10-03062 Page 21
imports of SSWR from [a country other than Germany] only – [
] (C.R. 102); (2) the certified foreign producers’ questionnaire response, with cover
letter, submitted by the German supplier/manufacturer [ ], confirming [its product line]
(C.R. 568; see also C.R. 81, Final Staff Report at IV-3 n.4); (3) proprietary Customs entry data
showing that all material entered by [Company A] in the relevant period and listed as “German” was
classified as [a particular type of steel product, under a particular subheading of the HTSUS] – the
product category which was confirmed [
] (C.R. 263); and (4) confirmation that the data
provided by [Company A], the data listed in the CNIF import files, and the official import data, all
matched and cross-checked. C.R. 81, Final Staff Report at IV-3.
In short, contrary to the claims of the Domestic Industry, there is ample evidence in the
record to support the Commission’s adjustment to the official data, excluding the [Company A]
material.
The Domestic Industry’s arguments concerning [Company A’s] obligations vis-a-vis Customs
are similarly unavailing. As Krupp notes, there is no evidence on the record to substantiate any
claim that [Company A] lied, either to Customs or to the Commission. It is entirely possible that any
misclassification was entirely inadvertent. See Defendant-Intervenors’ Brief at 46.
Moreover, while it may be true that there is no record evidence that [Company A] reported
its misclassification to Customs, it is equally true that there is no evidence that the company failed
to make any necessary subsequent disclosures. Defendant’s Brief at 30 n.38; Defendant-Intervenor’s
Brief at 47. And, indeed, what evidence there is on the record cuts against the Domestic Industry’s
Court No. 98-10-03062 Page 22
position: [Company A] did, in fact, advise the Commission staff that it would be contacting its
customs broker to ascertain whether merchandise had been misclassified. C.R. 426.
Further, there is no merit to the Domestic Industry’s implication that any inconsistencies
between the information that [Company A] reported to the Commission and that reported to Customs
necessarily renders the information furnished to Customs the only information on which the
Commission could reasonably rely. Customs’ responsibility for classifying imports for the purpose
of assessing duties does not detract from the Commission’s independent obligation to compile the
necessary information required for its analyses. Other agencies are not bound by Customs’
classifications. See, e.g., Royal Business Mach., Inc. v. United States, 1 CIT 80, 507 F. Supp. 1007,
1014 n.18 (1980), aff’d, 669 F.2d 692 (CCPA 1982).
It is beyond cavil that the Commission is entitled to supplement information from official
statistics with the information that it gathers during its own investigation, and – after weighing the
evidence – to choose to rely upon one set of facts over the other. Indeed, the Commission routinely
relies on information it gathers in the course of its investigations, even when that data conflicts with
other official statistics on the record; and the Commission has been repeatedly upheld when it has
done so. See, e.g., Texas Crushed Stone Co. v. United States, 17 CIT 428, 822 F. Supp. 773, 781
(1993), aff’d, 35 F.3d 1535 (Fed. Cir. 1994); see generally Defendant’s Brief at 27-31.
Here, the Commission obtained specific, detailed information about the merchandise at issue
that was not previously available to Customs. The record before the Commission thus included
different – or additional – information from that which Customs used in its classification. The
Court No. 98-10-03062 Page 23
Commission responsibly reviewed its own administrative record and, based on those facts and
drawing on its expertise, reached an informed conclusion as to the appropriate adjustments to be
made to the data used for its negligibility determination.
The Domestic Industry’s second challenge to the Commission’s reliance on information
provided by [Company A] rests on its complaint that the information was not submitted in the form
of a certified questionnaire response. See Plaintiffs’ Brief at 7, 21-22. While it is true that
[Company A] did not return the importers’ questionnaire in the final phase of the investigation, the
company was responsive to the Commission’s requests for information. C.R. 550.
More to the point, the information that [Company A] submitted in the final phase of the
investigation confirmed and was consistent with information that it had previously submitted. The
Domestic Industry thus conveniently ignores [Company A’s] importers’ questionnaire response
submitted in the course of the Commission’s preliminary investigation – which was certified, and
which indicated that the company had imported SSWR only from [a country other than Germany]
and that [ ] throughout the
relevant period. C.R. 102; see also C.R. 81, Final Staff Report at IV-3 n.4.10
10
The Domestic Industry similarly ignores the existence in the record of a certified response
to the foreign producers’ questionnaire that was submitted in the final phase of the investigation by
the supplier [ ]. That certified questionnaire response further corroborated
both the questionnaire response submitted by [Company A] in the preliminary investigation and the
company’s statements to the Commission in the final phase of the investigation, to the effect that it
had imported [ ] SSWR from Germany during the period at issue. C.R. 568; see also C.R. 81,
Final Staff Report at IV-3, n.4.
Court No. 98-10-03062 Page 24
B. [Company B] Adjustments
The Commission’s adjustments to the official statistics were not confined to the data on
[Company A]. The Commission also adjusted the official statistics to reflect information supplied
in the investigation indicating that a portion of [Company B’s] imports of SSWR that were declared
to Customs as being of German origin were actually of [another (i.e., second) country] origin.
Specifically, based on the handwritten notations on the [Company B] worksheet, the Commission
determined the origin of [a very high]% of the [Company B] shipments at issue. The Commission
further determined that – of that [very high]% – approximately [ ]% were actually of [second
country] origin, while only approximately [ ]% were of German origin. The Commission
allocated the remaining [ ]% of the material – the so-called “unknown” material – between [the
second country] and Germany, based on the [ratio derived from the material for which the countries
of origin were known]. See generally Defendant’s Brief at 34.
Just as it objected to the adjustments to the data on [Company A], so too the Domestic
Industry contends that the Commission’s adjustments to the [Company B] data are not supported by
substantial evidence on the record, and are otherwise contrary to law. See generally Plaintiffs’ Brief
at 14-21; Plaintiffs’ Reply Brief at 16-30.
The Domestic Industry first attacks the Commission’s reliance on the worksheet. The
Domestic Industry portrays the [Company B] data as a “moving target,” emphasizing that Customs
records indicated that all the [Company B] merchandise at issue was of German origin; that – in the
course of the investigation – [Company B] initially advised the Commission that the merchandise
was [ ]% German and [ ]% [from the second country]; and that only after [Company B] was
pressed to provide a more specific breakdown did it provide the worksheet with handwritten
Court No. 98-10-03062 Page 25
notations on country of origin, from which the Commission staff derived the [ratio which the staff
then used to allocate the “unknown” material between Germany and the second country]. Plaintiffs’
Brief at 16-19; Plaintiffs’ Reply Brief at 16-23. All in all, the Domestic Industry seeks to impugn
the credibility of [Company B], and to challenge the “accuracy, reliability, and probative value” of
the information provided by the company on which the Commission’s adjustments were based.
Plaintiffs’ Brief at 14.11
The Domestic Industry charges that [Company B’s] worksheet reflects nothing more than the
company’s “estimates,” and that its figures lack any corroboration. Plaintiffs’ Brief at 15; Plaintiffs’
Reply Brief at 18. However, [Company B’s] worksheet was no “estimate”; it was a shipment-by-
shipment “reconstruc[tion],” annotated by the hand of the president of the company to indicate
country of origin. C.R. 496. Nor is the record lacking in evidence to substantiate [Company B’s]
claims.
The Commission specifically confirmed that [Company B’s German supplier] – listed as the
manufacturer in the official statistics – simply does not manufacture SSWR. C.R. 81, Final Staff
Report, at F-18 (table f-8) n.1; C.R. 280; C.R. 274; C.R. 396 at 5; C.R. 592. In addition, German
SSWR producers had separately informed the Commission that the official statistics on SSWR
imports appeared to be inaccurate (overstating imports from Germany), and had requested that the
Commission investigate the matter further. C.R. 270. Moreover, the total imports which [Company
B] reported to the Commission were virtually identical to the totals listed for the company in the
11
It is again worth reiterating that, as a general matter – as noted in section II. A. above –
evaluation of the credibility of sources is largely reserved to the trier of fact, the Commission.
Court No. 98-10-03062 Page 26
official statistics. C.R. 81, Final Staff Report, at F-18-19 (Table F-8) n.4 (and revisions at C.R. 89).12
Thus, there is substantial evidence in the record to support both [Company B’s] claims and the
Commission’s determination that adjustments to the official statistics were needed. Moreover,
although the Domestic Industry characterizes as “arbitrary” the country-of-origin breakdown set forth
in [Company B’s] worksheet (Plaintiff’s Brief at 15), they point to no evidence and advance no
arguments to support their skepticism, other than their general attacks on [Company B’s]
credibility.13
As with [Company A], the Domestic Industry seeks to make much of the fact that there is no
record evidence that [Company B] ever reported its misclassifications to Customs. See Plaintiffs’
Brief at 17; Plaintiffs’ Reply Brief at 17 n.17. However, as discussed in section II.A, there is also
no evidence that [Company B] failed to make any necessary disclosures. See also Defendant’s Brief
at 36; Defendant-Intervenors’ Brief at 54. With the record in equipoise on this point, it provides no
grounds to second-guess the Commission’s determination.
In a further effort to undermine [Company B’s] credibility, the Domestic Industry questions
the motivation behind the company’s statements, asserting that an interest in obtaining a lower
[ ] dumping margin would have given [Company B] an incentive to lie. See Plaintiffs’
Brief at 17-18. However, that concern is largely disposed of by Krupp’s observation that, “[b]y
12
The Domestic Industry minimizes the probative value of this correlation. See Plaintiff’s
Reply Brief at 20-21. Although – considered alone – it may not be compelling, it has at least some
probative value. And, as discussed above, it is buttressed by other information corroborating
[Company B’s] statements, and justifying the Commission’s adjustments.
13
As discussed in greater detail below, there is evidence in the record of a relationship
between the country of origin of a given shipment, and the manufacturer’s “heat codes.”
Court No. 98-10-03062 Page 27
definition, the imports at issue all were made before the antidumping petitions were even filed and,
therefore were never subject to an antidumping-related suspension of liquidation, let alone an
assessment of antidumping duties. Consequently, the origin of the entries could not possibly have
any impact on the potential liability for antidumping duties. Furthermore, because the importer at
issue [ ], the importer would have been free to source future
imports elsewhere in the event that substantial dumping margins were imposed.” Defendant-
Intervenors’ Brief at 54-55.
Similarly, the Domestic Industry’s assertion that [Company B] had an incentive to lie because
it was “keenly aware” that its responses could affect the outcome of the case for Germany is sheer
speculation. See Plaintiff’s Brief at 18. Indeed, as Krupp points out, the only authority cited by the
Domestic Industry to support its claim is a letter that is addressed not to [Company B], but to
another, unaffiliated importer. Defendant-Intervenors’ Brief at 55.
While the Domestic Industry objects generally to the [specific ratio] derived from [Company
B’s] worksheet, it takes particular exception to the Commission’s extrapolation of that ratio to the
[ ]% of the material that the ITC Staff deemed to be of unknown origin. Plaintiffs’ Brief at 18-21;
Plaintiffs’ Reply Brief at 23-25. The Domestic Industry complains that the Commission “not only
rejected official statistics when the importer claimed to have conflicting information, it also rejected
official statistics even when the importer had no information indicating a conflict.” Plaintiff’s Brief
at 18. According to the Domestic Industry, where “[Company B] did not even provide a guess as to
the origin of particular material, the staff gave the company the best treatment possible for the
missing data.” Id.Court No. 98-10-03062 Page 28
Indeed, the Domestic Industry claims that the only record evidence as to the country of origin
of the [so-called “unknown” material] is the Customs declaration made at the time the materials
were entered. According to the Domestic Industry, that “unrebutted” record evidence identifies the
[ ] “unknown” material as German, and the Commission should have treated it as such. See
Plaintiffs’ Brief at 19; Plaintiffs’ Reply Brief at 17 n.18, 23, 25.
But, contrary to the Domestic Industry’s claims, the Customs declarations do not stand
“unrebutted.” In the course of the investigation, [Company B] – in effect – affirmatively superseded
the Customs declaration with the submission of the [Company B] worksheet (and with the
submission of its questionnaire responses before that). Based on the record before the Commission,
it was entirely reasonable for the Commission to apply the [ratio derived by the staff from the
material of known origin] to the [ ] “unknown” material. Applied to the same general data set
from which the ratio was drawn, there was clearly “a rational relationship between the data chosen
and the matter to which they are to apply.” Manifattura Emmepi S.p.A. v. United States, 16 CIT
619, 624, 799 F. Supp. 110, 115 (1992).
In any event, the Domestic Industry’s quarrel with the Commission’s extrapolation of the
[ratio derived from the material of known origin] to the “unknown” shipments is of no moment.
Even if the Commission had treated [all the “unknown”] material as German in origin (as the
Domestic Industry urged), it would have had no effect on the Commission’s negligibility
determination. Although the Domestic Industry repeatedly asserts that – with that assertedly “slight
modification” – the German share of imports would have been 3% (and thus above the negligibility
threshold), in fact the share would have been only [less than 3]%. Compare Plaintiff’s Brief at 19-20
Court No. 98-10-03062 Page 29
with Defendant’s Brief at 35 and Defendant-Intervenor’s Brief at 57-58. In short, even if all of the
[“unknown” material] had been assumed to be German, the negligibility determination would have
been unchanged.14
Krupp takes it one step further, reasoning that application of the [ratio derived from the
material of known origin] to the “unknown” [ ] material was not only reasonable, it was
actually conservative, and ultimately prejudicial to [Company B]. See Defendant-Intervenors’ Brief
at 55-56. As Defendant-Intervenors note, the [Company B] worksheet provides, inter alia, the
manufacturer’s “heat code” for each material listed. Each volume of material specifically identified
as German in origin has a [particular type of] heat code, while those identified as [originating in the
second country] have [a different type of] heat code. Defendant-Intervenors’ Brief at 56; C.R. 603.
As Defendant-Intervenors note, the Commission’s worksheet shows that, in each and every case, the
“unknown” material has [the second type of] heat codes – which are consistent with [second country]
– rather than German – origin. Defendant-Intervenors’ Brief at 56 - 57; C.R. 496; C.R. 603.
Obviously, if the “unknown” [ ]% of [Company B’s] material had been treated as being entirely
of [second country origin] (rather than allocated pursuant to the [ratio derived by the Commission
from the material of known origin]), the German share would have been even further below the
negligibility threshold.
14
The Domestic Industry characterizes the distinction between [less than 3]% and 3% as
“nothing more than hair-splitting, and unreasonable.” Plaintiffs’ Reply Brief at 24 n.23. But the
Domestic Industry cannot simply “round up” to reach the 3% threshold. Throughout its
investigation, the Commission consistently calculated import share figures to two decimal places,
not one. See Defendant’s Brief at 35; Defendant-Intervenors’ Brief at 57-58.
Court No. 98-10-03062 Page 30
Indeed, the Defendant-Intervenors further reason that, in fact, the [Company B] worksheet
affirmatively identifies the country of origin of all the listed material, and that the Commission
staff’s identification of [ ]% of the material as being of “unknown” origin is the product of a
simple misreading of the document. A review of the [Company B] worksheet indicates that, as
Defendant-Intervenors note, each designation of origin supplied by [Company B] is handwritten next
to a subtotal (of weight) that corresponds to the preceding series of [heat codes of one of two
different types] (which, in turn, as discussed above, apparently correspond to country of origin). As
Defendant-Intervenors note, it appears that [Company B] “was attempting to provide the origin of
all of the listed material” by specifying the country of origin next to each subtotal. However, as the
Commission staff later discovered, some of the subtotals did not include all of the material listed
above. It was these few entries that the Commission staff treated as being of unknown origin. See
Defendant-Intervenors’ Brief at 56-57.
The Domestic Industry takes strong exception to the Defendant-Intervenors’ interpretation
of the [Company B] worksheet, dismissing it as post hoc rationale unsupported by the record. See
Plaintiffs’ Reply Brief at 17-18. But, contrary to the Domestic Industry’s claims, there is explicit
support in the record for the asserted relationship between heat codes and country of origin. In a
conversation with a Commission staffer, the president of [Company B] indicated that a review of
heat codes would enable him to provide a more specific country of origin breakdown for [Company
B’s] material. See C.R. 492V.
It is, in any event, unnecessary under the circumstances to rely on the Defendant-Intervenors’
interpretations of the [Company B] worksheet, because there is no need to consider whether the
[ ] “unknown” material was actually of German origin. Both the Commission’s adjustments
Court No. 98-10-03062 Page 31
to the official statistics on [Company B] and the Commission’s negligibility determination as a whole
are supported by substantial evidence in the record as it now stands.
C. The Path of the Commission’s Decisionmaking
As a final challenge to the determination at issue, the Domestic Industry asserts that the
Commission failed to articulate an explanation for its use of adjusted data. Specifically, the
Domestic Industry contends that the negligibility determination lacks a rational basis, because it is
assertedly “not clear from the Commission’s determination that any commissioner was aware of the
concerns raised by the domestic industry, and that the commissioners had an opportunity to consider
these important issues in reaching their determination.” Plaintiffs’ Reply Brief at 30. See generally
Plaintiffs’ Brief at 23; Plaintiffs’ Reply Brief at 30-31.
However, the Commission is presumed to have considered all evidence in the record in
reaching its determinations “absent a showing to the contrary.” USEC Inc. v. United States, 34 Fed.
Appx. 725, 2002 U.S. App. LEXIS 7845, at **14 (Fed. Cir. 2002). Here, the Domestic Industry
proffers no evidence that the Commission failed to consider its views regarding the adjusted imports
data. Indeed, the Domestic Industry expressly concedes that “it is possible that [the Commissioners]
did read some of the staff notes and footnotes to tables that mentioned [the concerns of the Domestic
Industry] . . . .” Plaintiffs’ Reply Brief at 31.
Moreover, the Domestic Industry’s arguments in this action go to the evidentiary basis for
the Commission’s negligibility determination (i.e., its adjustments to the official statistics). While
the Commission is required to address the facts and conclusions of law upon which its determination
is based, it “is not required to address every piece of evidence presented by the parties . . . .” USEC
Court No. 98-10-03062 Page 32
Inc., 2002 U.S. App. LEXIS 7845, at **14; cf. Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,
Inc., 419 U.S. 281, 290 (1974) (affirming the Commission’s action where the court was able to
“discern in the Commission’s opinion a rational basis for its treatment of the evidence . . . .”).
Applying these standards, the Commission’s determination here clearly passes muster.
IV. Conclusion
For the reasons set forth above, the Commission’s negligibility determination in this matter
is supported by substantial evidence on the record and is otherwise in accordance with law.
Plaintiffs’ motion for judgment on the agency record is therefore denied, and the Commission’s
negligibility determination in Stainless Steel Wire Rod From Germany, Italy, Japan, Korea, Spain,
Sweden, and Taiwan, 63 Fed. Reg. 49,610 (Sept. 16, 1998) is sustained. This action is dismissed.
Judgment will enter accordingly.
/s/ Delissa A. Ridgway
Judge
Decided: December 16, 2003
New York, New York